The Distinctive Nature of Possession (al-Thubūt) in Yemeni Civil Law: An Analytical Study of Its Legal Nature and Substantive Scope

Abstract

This study examines the specificity of ownership possession (Thubūt) in the Yemeni Civil Code through an analytical approach aimed at clarifying its legal nature and determining its substantive scope in light of the provisions of the Code itself. The research is grounded in a central problem concerning the extent to which the regulation of possession in Yemeni legislation differs from that in comparative civil law systems, particularly in view of the legislator's use of the term Thubūt and the restriction of the legal effects of possession to its role as a presumption of ownership and certain procedural effects related to the admissibility of claims, without recognizing it as a mode of acquiring ownership. The study adopts the analytical method in interpreting the relevant statutory texts and the inductive method in deriving the general principles governing possession, while making limited use of comparative references for the purpose of highlighting the particularity of the Yemeni legislative framework. The study concludes that ownership possession (Thubūt) in the Yemeni Civil Code constitutes a factual situation with legal effects, rather than an independent real right, and that it is confined to tangible objects capable of effective physical control, whether movable or immovable. It further demonstrates that the Yemeni legal framework is characterized by a clear distinction between ownership possession (Thubūt) and possessory enjoyment, and by limiting the legal effects of possession to the scope of a legal presumption and the limitation barring the hearing of claims, without recognizing acquisitive prescription. These findings reveal a distinctive legal construction of the system of possession in Yemeni civil law, deriving its particularity from its legislative structure and jurisprudential foundations. Accordingly, its provisions must be interpreted within their own internal logic, without the uncritical transplantation of concepts from comparative legal systems.